Someone Ate Tom Waits’ Birthday Cake

Tom Waits has a new album coming out in a month. It’s set to be his first studio album of all new music in seven years. But apparently, someone already leaked it over the internet.

Tom Waits is not one to take this lying down. He just posted this video to scold us all. I don’t know about you, but when I watch this I feel like a little kid in time out for breaking her mother’s vase, or maybe for using her father’s rare coin collection to buy candy.* Check out the video after the jump.

There was a recent study published that found spoilers don’t actually ruin the ends of films or books, and in fact may sometimes enrich the experience. Obviously this is slightly different, since instead of exposing the end of a story someone has exposed the entire album of someone’s music. But still — what’s the difference if a few people have already heard the songs before the official release? This won’t necessarily affect anyone’s enjoyment of it, will it?

What do you think? Has the internet made the idea of secrets and surprises obsolete, and if so, is this a good or a bad thing? Do you think this might just be a big ploy to sell more records?

Like this:

Ashley Hamer (aka Smashley) is a saxophonist and writer living in Chicago, where she performs regularly with the funk band FuzZz and jazz ensemble Big Band Boom. She also does standup comedy, sort of, sometimes. Her tenor saxophone's name is Ladybird.

31 Comments

Please tell Tom I have baked him a new cake and I will buy his new album twice.

If this was pure promotion it worked like a charm on me. But seriously? I love Tom Waits so much he could have said a crappy haiku written by a 3rd grader through a 1920’s microphone and I’d be all SQUEEEEEE ZOMG here is my wallet, Tom!

Well I’m sure that if it was leaked (and isn’t a planned publicity stunt), there’ll be a chorus of self-entitled idiots on the interwebs claiming that it won’t harm sales, etc. No doubt the study about knowing the ending not ruining books will be quoted ad-nauseum, all the while ignoring the only thing that actually matters:

The artist had his right to control his work taken from him.

He didn’t want to release it before a certain date? Well “no” means no. As artists, we should feel outrage when things like this happen.

Fantastic! The new album coming out I mean, not that it got pirated. The last time he took a long break gave us Bone Machine, one of my very favorite albums.

As to this incident I’m with mattg, Tom should be able to control his work, or at least that parts that are controllable, in any way he deems fit.

The studies about knowing the ending of books are not about the artist, they’re about the end user. The offense here isn’t against the consumers, it’s against Tom and his wishes. I’ve not seen an argument that addresses why Tom shouldn’t be pissed off about this.

Nobody’s seriously suggesting that artists shouldn’t be able to control his work, or that Tom “shouldn’t be pissed off”. That misses the real question (or at least the interesting question, to my mind) — which is whether it really works to the artist’s favor to maintain that level of control.

For example, I would never argue that Tom shouldn’t have the right to ask $5000 for his album, and that he would still have every right to be annoyed at the album being widely pirated (as it almost certainly would be). But it would clearly be ill-considered, and almost certainly not a positive move for him, in the short term or otherwise.

@breadbox what do you define as the artist’s “favour” – that is the fundamental question.

As a sculptor, my “favour” is my ability to dominate and control my materials and technique so utterly, that I can make anything I can imagine, and more importantly, that when I choose to allow the truth of my materials to drive my work, letting my technical abilities take a back seat, that it’s a conscious choice, rather than something imposed by a limitation of my skills.

The financial profitability of the work, the favour to my bank balance, isn’t really anywhere on the priority list.

Control for the sake of control, to make a mark, for the sake of making a mark is all an artist actually has, so to deprive them of that control, regardless of what a person sees as an “upside” by their own value system, is the most gratuitous and fundamental outrage you can commit against them. Arguably the denial of control of one’s own freedom of person, thoughts and actions is the basis of everything we think of as “crime”.

It is an interesting topic. Many artists have made a name for themselves by giving their work a way for free on the internet. The author Scott Sigler come to mind. I have heard Cory Doctorow talk about this sort of topic as well. If you are going to utilize the internet as a means of promotion you have to accept that you are giving up some control of how your art will be digested by the mainstream and how you will be able to control it. If you are going to play in the deep water of the internet you are going to have feed the sharks at some point. That is how you start a feeding frenzy.

@amy Doctrow and Sigler have *chosen* to give their work away, it was not forcibly taken from them.

No amount of saying “but other person x liked it” makes it ok to impose something on someone who isn’t consenting.

How would you feel, for example, if all the online 3d printing companies like Shapeways decided to give away exact duplicates of your jewellery, flooding the market to AOL CD proportions, for free as a promotional exercise for their service, without asking your permission or paying you a licence fee? Some people would argue that your work suddenly being so common that it had junkmail properties would be “getting your name out there”, but would that satisfy you?

Why would you assume an artist wants to start a feeding frenzy? Waits doesn’t need a feeding frenzy – he’s an established artist who’s fans will support his work when he’s good and ready to release it. This isn’t a case of using the internet for promotional purposes. Assuming the line that the album was leaked by someone employed in the production process is true, it’s actually a close analog to industrial espionage.

Taking something made by, and owned by someone else is wrong, and there is no grey area about that. No amount of “she shouldn’t have been dressed like that”-esque justification changes the fact that “no” means no.

Obviously, I would be upset if my designs were stolen and I would have a copyright and potential trademark lawsuit ready to go against a specific company who did something like that but that is not what I was talking about. I am simply saying that you can get rich and or popular by knowingly giving some of your work away on the internet and that some artists may actually be better off by relaxing their grip on some of their work. I know a lot of the bloggers on this site often give work away intentionally and then sell other work. Steve and Cloe are doing that now with their paper dolls. This is a very common practice online with musicians and authors.

And we haven’t even established if Tom really did get pirated or if he intentionally leaked his work. And I can assure you that he WANTS a feeding frenzy in terms of music sales. If he didn’t want sales he would donate his profits to charity or something or not charge at all. My guess is this is completely intentional. I for one, didn’t even know Tom Waits had a new album coming out and I’m a fan so I’m assuming I am his target market. The reason I found out about it was because the “controversy” was trending online. Now I will buy his record. And if his music was pirated I will still buy his record. Either way, I found out about the record because it was leaked.

@mattg: The analogy of someone copying and selling Amy’s artwork doesn’t really fit. If you have a copy of Toms Waits’ new album, you have a copy of the album, pirated or not. It’s not Man Man covering the album note for note, it’s the actual thing. I think there’s a difference there.
Also, regarding ‘control’ in your comment above: The way you put it, Tom Waits has the same control when he writes and records his music. While it is his or his record company’s decision on when to release it, he still has and has had the same kind of ‘control’ that you are speaking of in your comment.

@amy at their cores the issues are more or less the same – the deprivation of control and consent. I think it’s a valid analogy – the integrity of the artist’s control has literally been forcibly violated. “Rape” has not always been a word specifically for sex crimes, and in this case it’s probably the most correct word albeit indelicate, to describe what happened, *if* it happened as reported.

“Obviously, I would be upset if my designs were stolen and I would have a copyright and potential trademark lawsuit ready to go against a specific company who did something like that”

Well, I guess you’re going to be in an interesting position when desktop 3d printers become as common as inkjet printers are now, and people are “sharing” the plans to make indistinguishably perfect reproductions of your work more cheaply than you can make the originals.

“I am simply saying that you can get rich and or popular by knowingly giving some of your work away on the internet and that some artists may actually be better off by relaxing their grip on some of their work.”

But this isn’t a case of “giving” or “relaxing control”. That sounds like a post-hoc justification of the *taking* of and *ripping from* of control.

What gets me ranty is that the justification is always along the lines of “but the artist could make more money” or “but it gets the artist’s name out there” as if that makes it ok. What gives anyone the right to presume money is the highest, or even *a* goal?

What if, on the most fundamental level, the only reason Waits, or any other artist is making work is for the singular experience of exercising control (over the use of their time, over their materials etc). What can you or anyone possibly say or do to make it better if you’re condoning the denial of that?

I’ll have to quote the Dark Knight soon about tangerine-sized rubies 🙂

Really, it’s never ok to deprive someone of choice and then give them money afterwards and say “hey at least you’ve got some money out of it”.

Wrong is wrong. You don’t beat the snot out of someone, and then throw a fistfull of dollars on their unconscious body and say “it was alright because he made some money from it”.

@brian g Waits’ record company is an extension of his control. Are you arguing that because the record company has an agreement with Waits for a specific release date, that somehow he has given up all rights to jointly exercise control over that date?

But if you want to argue that Waits gave up the right to exercise control over release dates to his record company, then fine, I’d feel JUST as outraged for them. What happened to the notion that you stay off your neighbours lawn, *cause it’s their lawn* not because there happens to be a fence around it?

@mattg, Again, if you chose (yes I said chose) to share your work for free it can stand to do you some good. And I still think that this was a promotional stunt. Waits was planning a listening party right? Now more people are coming to that party.

As for your ranting about people stealing my work, I’m not sure what that is all about really, unless you are trying to somehow get me upset which doesn’t help you make your point at all. I still own the copyright to my designs so a 3D print company or anyone else would be violating my rights if they copied them. I would be bummed if that happened because I would have to go to court and I have better things to do. Now, a photo of my work getting spread around… meh.

And just like Brian said, it is different if a band were to be covering the music of Tom Waits word for word, note for note and then selling that than if it is if the actual music of Tom Waits getting heard or leaked early. I’ve bought a million records because I heard it somewhere first.

And there is something to be said for art from the artist. Photographers still sell their work and you can print any photo you want at home anytime on your home printer, now. There will always be value in an original, handmade piece of art from the artist. And people will buy music that they hear and that they like, that has been shown to happen again and again. That is why so many musicians give tracks away.

My main point is, if I were to give my art away, which I do for multiple charities and events on a regular basis, that might help me promote my art because it would be reaching a wider audience than if I only let it go out in the world for money. True? Yeah, true. And maybe my control is exercised in a way where I want my message and my art to spread because my project is more than just the individual pieces themselves. I have a message to spread too.

I understand your desire for control of your art and you totally have a right to that but I think your view is a bit more extreme than the views of some others like myself. There is a big difference between the conversation of sharing art and the conversation about copyright infringement. And Waits was also referencing privacy. He makes a good point that it doesn’t exist like it used to.

If you are going to chose to exist on the internet you are agreeing to certain terms and you risk sacrificing some privacy and some control.

That doesn’t mean that you give up your legal rights as an artist it just means that you have to learn different marketing techniques if indeed you are interested in selling your work or existing online. If you’re not, that’s fine and maybe the internet isn’t the right place for your art. Maybe traditional galleries are better, that way you can have more control over who is peeking in the window while you work and you can determine when and where your work is displayed.

Also? I’m not sure why you keep using such violent language and metaphors to try to make your point. It’s really unnecessary.

I’m going to try to jump away from the rather cumbersome and entangled argument between promotion, ownership, control and theft that we have going here cause mattg has proposed an interesting direction for piracy that I haven’t thought of before.

What happens when it becomes feasible to pirate objects?

Right now music and film and an photographs are pretty much free for anyone to make copies of as much as they want. The digital copies are free and do not in anyway affect the original. However with a printer or a DVD or CD burner, we can create near perfect copies.

Right now it is possible to translate a 2d image into a 3d model pretty effectively through software. You can also print a decent 3d model if you have the resources.

What happens when the fidelity of these prints becomes high enough for the replica to be indistinguishable from the original without close inspection? What does this mean for sculptures and toys when this becomes a household capability?

@Ryan 3d printers can already do stainless steel at resolutions smaller than the finger can feel, or the eye can see. Object piracy is an immense problem that’s about to explode, threatening the editioned sculpture market, toys, and just about every aspect of the physical property world, in the same way digital technologies effected the intellectual property economy.

It’s not quite Neal Stephenson’s Diamond age yet, but it’s a big leap in that direction.

Many workshop machining tools and CNC systems come with licences that forbid you using them to make their own spare parts, cause once you’ve got one, you can use it to build more.

@amy the use of violent metaphors? I guess because the deprivation of control of your own work is a violent / violating act, that it’s the most accurate metaphor, and perhaps if more people understood it from that perspective, there’d be less of an attitude that money cures everything. If you don’t think violence is an accurate metaphor for the act of someone taking your control over your work away from you, maybe you have a different emotional connection to your work than I do.

But I mentioned your work because you are really near the epicentre of where the next value-stripping (from an established industry / model) disruptive technology is going to hit. I’m playing largely with human or larger scale steel, so hopefully the dynamics of scale and clientele means 3d printers aren’t going to be a problem, but you definitely have a potential “adapt or perish” snowball on the way. I’m genuinely interested to know how it would effect you emotionally if 3d printers made your work so ubiquitous against your wishes that it went into a fad, passe and worn ironically cycle. Perhaps it would serve you in that it would cultivate a “this is REAL Surly Amy” enthusiast market, but fashion is a dangerous rollercoaster.

I would disagree with you regarding photography to the extent that I think the gallery system is perpetrating an unrealistic analogue world model in digital prints that are “limited editions” (yet have none of the artist’s hand or limits or variation in their fabrication that makes analogue photography “limited”), but that’s an area I tend to write essays about.

Like I’ve said, it’s my bugbear – that the answer to an artist being outraged at the loss of control of their work always has an element of “there’s a financial upside, so quit yer whining”.

That should make people angry, because it’s such a close analog to the sorts of acts which do make people angry. But we tend to live in very cynical art-hating times, where “being famous” is the career / life goal of huge numbers of children, so I probably shouldn’t be surprised when people assume Money and Fame to be goals in of themselves.

@mattg: Out of my own, strange curiosity I have a question for you. What do you think your reaction would be if one of your favorite artworks (that you made) was destroyed? Not in a malicious, done-on-purpose way, but, in a ‘fell into the sea’ or ‘burned to the ground’ way?

I have to say I’m with Amy on the ‘violence’ objection. As passionate as we may be about one subject, subjugating another to make a point might not be well-met. So, uhh… ‘rape’ shouldn’t IMHO be a ‘go to’ argument unless we’re talking about actual rape in its modern context. Arguing the semantics and historical usage is moot. It’s just plain unwelcome in common discussion about things like intellectual property, especially to women; unless we’re actually discussing semantics and historical usages.

That said, I do agree that stealing is stealing and taking away an artists’ ability to present and control their art is egregious and morally reprehensible. Does it, as an intellectual excercise, nonetheless sometimes help the artist? Probably. But it’s still their choice. (We can still conjecture about it, though. That harms no one.) It all boils down, for me, to the fact that a song may be intangible, but that doesn’t mean that duplicating it digitally without the creator’s OK is any less of an offense than duplicating perfectly a tangible piece of art without the creator’s consent.

@brian g if one of my works were destroyed… I’ve experienced it many years ago, and from memory, it wasn’t a pleasant experience.

@maggie heya, long time no see. I think we’re just going to have to agree to tolerate and disagree on the language thing, because as an artist I don’t think there’s ever any circumstance under which it’s acceptable for a person to say “yeah but as an upside, they got fame and fortune out of it”. I think that’s just as deeply offensive as you might find my choice of metaphors. It’s odd to me that a community that can be so sensitised to one instance, can be so dismissive of or insensitive to the validity of the other. Kinda reminds me of that black christian preacher in New York recently who was calling for opposition to legitimising gay marriage, as if civil rights end with ethnicity.

Look, it may be that the whole thing was a carefully staged publicity stunt and this is just an intellectual exercise, but perhaps anyone who finds my use of metaphor offensive might take pause to consider their own attitudes.

@mattg. I am going to give you benefit of the doubt and end this with the idea that we are arguing about two different things. There is a HUGE difference between theft and marketing your art online. You are talking about theft, I was talking about intentional, giving away of art in order to market yourself. End of that discussion.

However, we are under no obligation to try to decipher your inflammatory retoric. To compare file sharing and the leaking of music and or art online to rape, racism and other violence to attempt to make a point after we have asked you not to, causes you to come across as rude, close-minded and insensitive. There is no correlation between an alleged publicity stunt to sell records and religious oppression of gay marriage, or rape, or physical assault and quite frankly, to insinuate that there is, is insulting to anyone who has been the victim of a violent crime or has been oppressed. We are under no obligation to reevaluate our attitudes on rape culture or bigotry because you like metaphor.

The comment section on this blog is not an exercise in creative writing. It is a space for rational discourse about art, skepticism and science.

@mattg said ” because as an artist I don’t think there’s ever any circumstance under which it’s acceptable for a person to say “yeah but as an upside, they got fame and fortune out of it”.”

Yes there is. Civil discourse and discussion of reality. If a thing is, a thing is. [and by ‘is’, I mean factually, not metaphorically or analogously.] Saying it ‘is’ isn’t the same as saying it’s right or saying it should be allowed or encouraged. Fact: Some people have benefited from their work being leaked -> discuss.

Whether you intended to or not, whether you realize it or not, most everyone here is reading what you are saying as “you can’t discuss that because it’s bad – discussing it is akin to endorsing it”, especially when you lead the argument with passion o emotion rather than fact and reason.

No one talking here is keen on piracy. Full stop. But most everyone here likes to flex their brains and that includes discussing stuff like this. You can’t conflate discussion with endorsement and expect people not to bristle.

@amy Waits’ complaint is that his work was *stolen*. You can choose not to believe him, but that’s what he is complaining about.

Is this article any different to using a story about someone being beaten unconscious on the street, to kick off a discussion about the upsides of professional boxing? Or any non-consensual crime, to kick off a discussion about an equivalent consensual professional activity?

This discussion veered into this direction because I pointed out that when things like this happen, there is *always* a contingent of people on the interwebs who will say that it’s ok for an artist’s work to be stolen and leaked against their wishes, because there’s a potential fame and fortune upside for them, whether they like it or not, or at least they should stop whining and just accept that as the reality of using the Internet.

That concept is *just* as offensive and just as hurtful, and just as much a case of victim blaming as saying “well you shouldn’t walk down a dark alley at night”.

The only reason I can imagine for why you find that metaphor so problematic, is if you really don’t think the crime of the violation of an artist’s integrity of control is as serious as a crime of physical violence, and that I don’t have the right to feel or express in polite, calm language that it is. We might end up having to disagree on that.

Do you not think it’s valid for artists to feel the same anger over the theft of work, and the insensitivity of suggesting there could be an upside, as the article did, as you obviously feel when I shift the metaphor to physical violence (which probably stirs in most people, the very feelings they *should* be experiencing about the violation of an artist’s integrity)? I mean to me you’re coming across as saying “my cow is more special and sacred than yours”.

But hey, you want to tell me to push off, despite having made a clear, rational argument with no insults or abusive language, fine I will.

@maggie actually you’re kindof interpreting at this backwards from my perspective – I agree that civil discourse can and should be able to be had on any subject. The only time the discourse has turned uncivil, as far as I can see, is when Amy has been telling me to shut up or leave because she doesn’t like the choice of metaphor I’ve used.

I’m not for a moment saying “this can’t be discussed because it’s bad”, I haven’t told anyone to leave, or shut up. Granted, I think it’s in questionable taste to use a case of a non-consenting violation of an artist’s integrity to kick off a discussion about the career upsides of *giving* things away, especially when there’s so many examples of consenting artists to choose from.

My argument has been “this is akin to and as bad as that other thing, and so should be discussed with the appropriate gravitas”. The fact is that on the interwebs, intellectual property, and especially the moral rights of artists aren’t afforded any real gravitas by many people. As far as I can see, Amy is objecting to the very idea that I could consider artistic violation to be comparable with and as serious as physical violence, or at least objecting to my expressing that idea here.

People have made successful careers out of writing / talking about their experiences of assault and violence, do we ever look for and talk about the upside in those crimes? I think it’s a double standard to then say artists should look for an upside to a crime, and that’s very perplexing, especially when people deny there’s a double standard there, or try to invalidate the right of an artist to feel just as strongly about their body of work, as they feel about their own bodies. Especially since most artists I know tend to treat their work with more care and respect. 🙂

Matt, you’re appeals to emotion are insulting. Comparing rape to someone burning a CD is so offensive I don’t even know where to begin.
First of all it makes your argument sound weak when you use such ridiculous comparisons. It’s an appeal to emotion and the people on this site are a bit to seasoned to fall for such limp arguments.
Second, saying someone “should” feel something makes no sense. Just because you feel a certain way about something doesn’t mean that that’s the only appropriate way to think about things. People with phobias of ducks feel truly violated when a duck is in the same room as them, that doesn’t mean no one in the world should own ducks.
Now I’m probably the person who disagrees with you most on this subject, as I believe all art/culture is derivative and once something makes it’s way out of your head it’s open for the world to copy, use and learn from however they want. That being said nearly everyone else here agrees with your main point and the only reason they have any trouble with you is you’re very bad at forming logical conclusions that appeal to reason instead of emotion.
So take the hint stop provoking your allies.

@mattg: In addition to what Cloe has written (which is, in my opinion, very well put)
I would reiterate the following point: I (in addition to Amy) have also stated that I don’t feel that the metaphors that you have employed are working in your favor.
While I would generally agree with your points about theft of an artist’s work, I emphatically disagree with your use of ‘violence’ as a metaphor. Violence is capable of killing another. Of ending another’s life. Stealing or leaking someone else’s artwork is not even in the same sport, let alone the same ballpark.
How can you not see this difference? Your rhetoric is extremely inflammatory and I fail to see how you don’t understand this.

@Cloe: “Just because you feel a certain way about something doesn’t mean that that’s the only appropriate way to think about things.”

You’re quite right. So, why bite my head off when I say something you disagree with? Just because you think artistic violation isn’t that big a deal, and isn’t as bad as physical violence doesn’t mean it’s wrong for other people to have and express diametrically opposed viewpoints. I’m glad we agree on that.

@Brian g OK, so if I think the violation of an artist’s integrity IS as bad as physical violence, what metaphor would you suggest to carry the necessary weight to illustrate just how wrong I think it is, to people who obviously don’t share (given theft was the inspiration for a discussion on giving stuff away), and can’t empathise with, my perspective?

What I find really odd though, is that Cloe is saying that people with phobias about ducks, for example, should recognise that their problem with ducks is their problem, and shouldn’t stop other people having ducks, and yet Brian’s saying that his problem with my use of language is my problem and therefore I shouldn’t use language as I am.

Again, double standards, which is what got me up in the stirrups of my high horse in the first place. Gotta say, there is a distinct lack of tolerance for diversity of opinion in this thread.

Again, weak arguments for your perspective. Simply calling us names and claiming we’re intolerant of your views is just piling more emotional manipulations on top of your already unstable premise.
If your contention is so flimsy that it falls apart without the use of graphic, violent imagery that’s probably the first clue that you’re doing it wrong.
Take a minute and actually try to conceive of a way to make your point without the logical fallacy. If you can make the same point using logic and reason then your remonstration is strong. If you cannot, well then you probably never really had a case.

@cloe let me try to boil it down as simply as possible, so we can avoid confusion.

MAL used an example of an artist who’s work was stolen, and went on to question if that is really so bad, because there are studies that say that for a consumer of that work, ruining the surprise, doesn’t ruin the enjoyment of the work.

This has nothing to do with the feelings of the artist who’s Moral Rights (the legal kind from the Berne Convention) have been violated, as coelacanth pointed out.

The debate kept coming round to the idea that the artist should simply put up with the violation of their Moral Rights, if the result is an increase in fame and fortune.

Now, if you or anyone else can’t see how ethically wrong that idea is, then what choice do I have, but to turn to metaphors, until I can find one that creates the lightbulb moment and allows people to see things from someone else’s perspective? I’m sure we could talk about questions of the privilege inherent to a person who doesn’t think the artist’s integrity of choice is the most important thing they have.

The only reason I had to resort to metaphor, was because people kept looking for excuses, such as “but the artist could make more money and become more popular”, or “he faked the whole thing”, while avoiding acknowledging that the violation of an artist’s Moral Rights to arbitrarily control their work is wrong (and illegal) without qualification.

Amy said:

“If you are going to utilize the internet as a means of promotion you have to accept that you are giving up some control of how your art will be digested by the mainstream and how you will be able to control it.”

To me, *saying* that is just as insensitive and offensive as *saying* that a person who was assaulted shouldn’t have walked down a dark alley, because both of them are examples of victims of crime being blamed for their own situation – using the Internet, or walking down a dark alley respectively.

Both of those situations require perpetrators of crime to make a conscious decision to break the law in order to impact on the victim. There is nothing inherent to the mechanism of the Internet which makes respect for copyright and Moral Rights any less valid. Just as a dark alley means you still have to respect laws about assault and battery.

The relative severity of the crimes on your subjective scale is completely irrelevant. The structure of blaming the victim for putting themselves in a position to be a victim of crime is the same.

It is a simple and stable argument, but if you can’t or won’t accept that, or won’t tolerate that argument being made, then we are at an impasse and have no reason to continue.

You can keep going over it ad nauseum and it still wont make your argument any better, simply reiterating a point does not make it accessible to other people. If an impasse has been met it’s because you refuse to use the pedestrian walkway.